Historically, there has always been unequal bargaining power between Employers and Employees. Employers are seen as having greater authority in the workplace, and the rights as conferred in the Labour Relations Act (LRA) are necessary to level the playing field. Section 23 of the Constitution of the Republic of South Africa gives everyone the right to fair labour practices and every Trade Union, Employers Organisation, and Employer to engage in Collective Bargaining. Furthermore, the LRA promotes Collective Bargaining and Employee participation in decision-making in the workplace.

In AMCU v Chamber of Mines [2016] 9 BLLR 872 (LAC), the Court confirmed that the majority principle is a valuable and essential means to an end which has been recognised as a necessary and reasonable policy choice for the achievement of orderly Collective Bargaining and democratisation within the workplace.

Section 1(c) of the LRA stipulates that “To advance economic development, social justice, labour peace and the democratisation of the workplace, the Act provides a framework within which Employees and their Trade Unions, Employer’s and Employers Organisation can:

  • Collectively bargain to determine wages, terms and conditions of employment and other matters of mutual interest.”

Although there is no constitutional or statutory duty on Employers to bargain, the LRA supports Collective Bargaining as a mechanism for regulating terms and conditions of employment and resolving disputes by:

  • Providing effective protection of the right of Employees to form, join and participate in the activities of Trade Unions in terms of Sections 4 and 5 of the LRA;
  • Enabling Trade Unions to obtain organisational rights in terms of Section 21 of the LRA, which would enhance their position in the workplace, thereby making it easier for Trade Unions to persuade or force an Employer to bargain collectively;
  • To grant every Employee the right to strike and every Employer the right to lock out in terms of Section 64 of the LRA; and
  • Regulating collective agreements’ legal status and enforceability, thereby making Collective Bargaining more effective.

In Metal and Allied Workers Union v Hart Ltd (985) 6 ILJ 478 (IC), “bargaining” is defined as” to haggle or wrangle to arrive at some agreement on terms of give and take”. The word “negotiate” is “akin to bargaining and means to confer with a view to compromise and agreement.”

In practice, most Employers have had experience with Collective Bargaining in one way or another. The right to strike is one of the most efficient manners in which Employers and Employees are forced to negotiate and bargain to find an agreement.

The LRA and the Constitution endorse Employees to bargain collectively to address the imbalance of power. It is recommended that Employers enter negotiations in good faith and with an open mind. Strikes can have a devastating effect on Employers, Employees, and the economy as a whole and should be avoided if possible.

Article By: Aletta Eksteen
Dispute Resolution Official – CEO Cape Town